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Texas Has a New Medical Marijuana Law, But It May Well Serve No Patients

Houston Press - 9/5/2017

Andrea Wimberly started getting seizures during puberty. For years, doctors tried a medley of pharmaceuticals to treat her epilepsy. They gave her Tegretol and Vimpat and Dilantin and Lamictal and Depakote. Some of the drugs made her seizures worse. Others soothed the problem but didn't fix it.

Usually, the seizures came on when she was stressed, sick or on her period. When she had a "simple" seizure she was "kind of out of it," she said. With a "complex" one she would lose consciousness. At the next stage, a "grand mal," or "tonic-clonic," seizure, she'd be on the ground, vomiting and convulsing.

One day, during the summer before high school, Wimberley had yet another epileptic episode.

Instead of sleeping, she smoked weed with friends. To her amazement, the aftereffects of her seizure went away. She later learned she could use other marijuana products, like oil, to prevent them from happening or at least lessen their intensity.

Now 35, Wimberley lives in Katy with her husband and seven-year-old son. As she got older, she grew warier of the drug. "I wasn't in high school anymore," she told the . "Having a son, I wanted to make sure I was doing things legally."

In 2013, Wimberley had a bad seizure. Her son, then only three, managed to FaceTime Wimberley's husband, who saw the situation andrushed home. "That's when I decided, to hell with the pharmaceuticals," Wimberley said. "I had enough. I'm still on light doses, but I was on a lot more. And I'm thankful I've been able to come off some of them."

Wimberley started ordering cannabis oil on the Internet to treat her seizures. A quirk in federal law makes the oil completely legal so long as it's weak enough to pass as "hemp." She became a marijuana activist. She was treasurer of Houston NORML - the National Organization for the Reform of Marijuana Laws - for a couple years before starting a grassroots group called Texas Cannabis Coalition.

As an activist, Wimberley fought to bring a medical marijuana program to Texas. Now, Texas has one. Wimberley might qualify, but she doesn't plan to join. In fact, she's angry about the new law.

In 2015, Governor Greg Abbott signed the Compassionate Use Act. The law allows neurologists and epileptologists to prescribe low-THC, cannabis-based medicines to people with untreatable epilepsy. By September 1, 2017 the Texas Department of Public Safety had licensed three companies to grow pot and produce medicine in Texas.

To prescribe it, two doctors will need to agree a patient would benefit from medical marijuana. Then, they'll need to enter themselves and their patients into a DPS registry. While doctors were able to join that system on September 1, there's still no official timetable for when patients can get medicine. Prescriptions can be written "once low-THC cannabis product is available," according to the DPS website.

That's one of the criticisms of the Compassionate Use Act - and there are many.

Wimberley doesn't like the law because of its strict caps on THC, one of the main active compounds in marijuana. She wants to try oils with higher potency. Under Texas law, cannabis medicine cannot exceed 0.5 percent THC. Since the federal limit for "hemp" is 0.3 percent, Wimberley points out she can already get similar products online.

Marijuana entrepreneurs are also raising a stink. On August 16, the Texas Cannabis Industry Association sent formal complaint letters to the DPS and Abbott's office, accusing the state of shirking its responsibility to make the program workable. The DPS has implemented the Compassionate Use Act so poorly that it's broken a law requiring state agencies to act in good faith, according to the letter.

Of the 43 companies that applied for the program, ten co-signed the letter. At a bare minimum, that means one-quarter of all applicants are now publicly expressing reservations about the program they tried to join. One of them is Patrick Moran, founder of Texas Cannabis. After working since 2016 to set up a medical marijuana business, Moran has got the business up and running but isn't growing pot.

A final criticism, this one from marijuana activists and policy experts, is that the Compassionate Use Act makes doctors "prescribe" marijuana. No other medical marijuana law in the country uses this language - leaving some to worry if the Texas program will work at all.

***

The Drug Enforcement Agency licenses doctors to prescribe controlled drugs. But it treats marijuana as a Schedule I drug, meaning it has "no currently accepted medical use," according to the Controlled Substances Act. When California passed the United States' first medical marijuana program in 1996, Barry McCaffrey, then director of the Office of National Drug Control Policy, threatened to revoke the license of any physician who participated. A few years later, a group of doctors sued him.

In 2002, the Ninth Circuit Court of Appeals ruled on the case. It decided physicians couldn't be punished for "recommending" marijuana instead of prescribing it. The loophole lets doctors certify patients for state programs without running afoul of federal authorities. Almost every program in the country now uses this phrasing.

Except for Texas. Texas explicitly requires doctors to "prescribe" cannabis. In the two years since Governor Abbott signed the Compassionate Use Act, groups like NORML and the Marijuana Policy Project fought to change this wording. During the last session, legislators introduced a bill to amend the law. It drew wide support but was never voted on.

The Marijuana Policy Project worries this language will put doctors at risk. "We remain concerned that doctors will be required to violate federal law to participate," Heather Fazio, a spokeswoman for the Texas Marijuana Policy Project, said. "A simple change to the law would provide doctors with the protection they need."

State representative Stephanie Klick, a Republican from Fort Worth, introduced the House version of the Compassionate Use Act. She doesn't have a specific timetable for the program's rollout but speculates it will start serving patients around early 2018, based on the amount of time it takes marijuana to grow.

A nurse and medical business consultant, Klick isn't worried about the prescription language. Although she says "there's no way around" the federal ban on marijuana prescriptions, she points to a nuance in the DPS regulations, which define a cannabis prescription as "an entry in the compassionate use registry."

Klick doesn't know of any other states that require prescriptions in their medical marijuana laws. But she argued the prescription language - along with the THC limits and strict rules on who qualifies - makes the Compassionate Use Act a no-nonsense medical law, unlike the programs elsewhere.

"We worked with physicians that treat people with intractable epilepsy in drafting our language, and that's what they felt comfortable with," she said. "I know there have been some organizations that say it's a problem because of a court case in California. That [court case] is advisory only. It's really not legal controlling authority over Texas because we're in different appeal courts districts."

"Doctors cannot prescribe Schedule I substances," Payne said. "If a medicine could be prescribed, it would not be Schedule I. Does that make sense?"

Klick's core argument - that these Texas "prescriptions" are different enough from regular prescriptions to protect doctors from criminal or professional penalties - has yet to be tested in court. And it's not clear the feds agree with her. Even after the details of the Texas bill were explained to Rusty Payne, a DEA spokesman, he remained adament that a physician could not prescribe marijuana without breaking the law.

"Doctors cannot prescribe Schedule I substances," Payne said. "If a medicine could be prescribed, it would not be Schedule I. Does that make sense?"

Tom Vinger, a DPS spokesman, said via email that there isn't a specific timetable for when patients will be able to access the medicine. Instead, he said, "timelines will be determined by the dispensing organizations." When asked about the prescription language, and whether it would subject doctors to any penalties, Vinger suggested the contact the Texas Medical Association and the DEA.

"We cannot speak for the DEA; you will need to contact them," Vinger said. Asking whether doctors would be criminally or professionally punished, he said, was akin to "asking [DPS] to comment on something the DEA would do."

Told the had already talked to the DEA and that after all, the DPS runs the program, Vinger responded with a nearly identical email message: "You will need to contact the DEA; we cannot speak on their behalf. Thanks for your patience."

The DPS knows the prescription language is controversial. The agency talks about it in an online FAQ for the program. "As a physician, I am concerned about providing a prescription for low-THC cannabis," one question reads. "Will the term 'prescription' be changed to 'recommendation?'"

No, replies the DPS. It can't change the words even if it wanted to. And since the bill already references prescriptions, the FAQ says, altering the language now would "interfere with these [criminal] exemptions."

This is misleading. Of course the Compassionate Use Act references prescriptions; that's precisely the gripe some people have with it. But Texas lawmakers can change those words and create new exemptions. They can't change federal law.

"You've got the wait staff, the general manager, and then you've got that poor shift manager," Moran said. "That poor sap gets the living shit beat out of him by everybody."

In recordings of a 2015 meeting, RenEarl Bowie, the DPS assistant director of regulatory licensing, said the prescription language was "something that will have to be addressed by the Texas legislature."

Patrick Moran, the entrepreneur, compared the agency's situation to that of a restaurant manager.

"You've got the wait staff, the general manager, and then you've got that poor shift manager," Moran said. "That poor sap gets the living shit beat out of him by everybody. He can never win an argument because he's the guy in the middle. That's the DPS."

***

As the DPS moves toward an unspecified and theoretical date when the Compassionate Use program will open, some patients are taking matters into their own hands.

Some have moved to states with more complete medical marijuana programs. No one knows how many "medical refugees," as some activists call them, have left Texas. But it isn't hard to find one. Becca Harmon and her husband moved from Canyon, Texas, to Trinidad, Colorado, to get medical marijuana for their 12-year-old daughter, Jillian, who suffers from cerebral palsy and seizures. In 2015, Becca brought Jillian to Colorado for the second time to try medical marijuana. They lived on a campground for months before the family decided to move.

Not everyone can make it out of Texas. We spoke with one Houston woman who says she buys marijuana from a pot dealer to make tinctures for her nine-year-old epileptic son. She started making illegal cannabis oil, she said, after doctors warned her that her son would lose his ability to speak.

"Moving was too hard," she said. "[My husband and I] have a house and jobs. I'm a licensed professional. I'd have to do extra education." She didn't plan on participating in the Compassionate Use program, citing the low THC limits. "He didn't do well with any CBD oils we tried," she said, using the common term for low-THC cannabis oil. "He actually medicates with high-THC cannabis."

We also spoke with five patients or their parents who'd likely qualify for the Compassionate Use Act, including two people who'd left Texas for medical marijuana. Only one person said she'd even consider joining the program.

Terri Carriker, who describes herself as a "Republican, Christian, conservative mom," lives outside Austin. Her 15-year-old daughter, Catherine, suffers from intractable epilepsy. Carriker is considering joining the program, but has qualms. Catherine is doing reasonably well in a trial run for an anti-epileptic drug, and Carriker doesn't want to jeopardize that.

"She's had everything, and she still has seizures every week," Kane said.

Carriker spoke to her daughter's doctor, Jeffrey Kane, about entering the program. Kane, who wants to register with the DPS, told Carriker he'd certainly help enroll her daughter, if she wanted.

"Catherine has been on I think every medicine on the market, so more than 20 different seizure medicines," Kane said. "She's been on a special diet to control seizures. She has had I think two different brain surgeries. Both those have failed. She's had everything, and she still has seizures every week."

Kane, a pediatric neurologist in Austin, is excited about the new program. He says he's had hundreds of parents ask him about having their kids join. In his opinion, not all of them would qualify.

"I don't think CBD is any kind of miracle cure for epilepsy," he said. "But anything that has the ability to treat these kids can only be good."

Asked if he's heard from the DPS, Kane said, "Nothing at all." He gets updates on the program from parents, he said. While some of his colleagues cautioned him about the prescription language, he doesn't think the feds will come after a doctor who's legitimately serving sick kids. Still, he acknowledged things could be different now that Jeff Sessions, who is stridently anti-pot, runs the U.S. Department of Justice.

Dr. Paul Van Ness, an epileptologist at Baylor College of Medicine in Houston, also hadn't heard any updates from the DPS. "They were supposed to give doctors some type of application form," he said. "That completely disappeared from their website when I last looked a couple months ago. Maybe I wasn't looking in the right place, but I searched and searched and couldn't find it."

Still, Van Ness is hopeful. He's willing to join the program, with a big caveat: "So long as I can do so legally." He's concerned there isn't enough information yet on dosing, side effects and interactions. And he isn't sure how the prescription language will be handled, noting that "you pretty much have to be a researcher at a university" to prescribe Schedule I drugs.

"I hope they work it out soon," he said. "I can't imagine doctors would risk their medical licenses or DEA numbers to do this."

Not all the doctors who spoke to us were willing to be quoted, even anonymously, citing work guidelines and the contentiousness of medical marijuana. And while we were unable to talk to the doctor of every patient in this story, we did check records to confirm patients' conditions.

To get a positive perspective on the law, Representative Klick's office suggested contacting the Epilepsy Foundation Texas. The advocacy group didn't respond to repeated requests for comment.

Other medical organizations throughout the state did, however. Brent Annear, a spokesman for the Texas Medical Association, said the group's position hadn't changed. Annear had previously expressed concern about the prescription language, writing in one email from February that "federal law prohibits writing a prescription for a schedule one drug."

Jarrett Schneider, a spokesman for the Texas Medical Board, couldn't confirm the board had worked with Klick on the law. He said the board couldn't give a "legal analysis" of the Compassionate Use Act, but that complaints could theoretically be filed against physicians who prescribed medicines they weren't qualified to prescribe.

Under federal law, no one is qualified to prescribe marijuana.

***

Patrick Moran used to be optimistic about the Compassionate Use Act.

A founding member of the Texas Cannabis Industry Association, Moran is one of the Texas pot entrepreneurs who sent a formal complaint letter to the DPS on August 16. Moran worked for at least a year to get ready and apply for the program. He founded Texas Cannabis. He bought a former cotton gin near Dallas and started building a grow-op.

Asked about the prescription language last year, Moran brushed it off with a now-familiar retort. The DPS, he wrote in an email from September 2016, had defined a prescription in a way that gave the DEA "no authority." Although Moran's was one of many companies competing for limited slots, he maintained a level-headed perspective leading up to the application deadline. If the DPS rejected his application, he said, Texas Cannabis could grow basil instead.

Now, Moran is growing basil. He doesn't seemed thrilled about it. "We planted our first crop of basil where we could have planted cannabis," he said. "We're harvesting basil and experimenting with basil oils."

Even in 2016, there were signs entrepreneurs would soon turn on the program. In October, Suzy Whittenton, the chief financial officer for the DPS, abruptly changed her assessment on the number of providers that would be required to make the program work. Instead of 12 companies, there would be three. In November, the DPS raised licensing fees from $6,000 to before lowering them to $488,520.

In May, the DPS awarded preliminary licenses to three of the 43 companies that had applied for them. It issued numerical scores for each applicant. The scores were ostensibly objective, with points awarded based on a checklist. Out of a max score of 100, Texas Cannabis got less than 50.

Moran claims there are sections of his application where the score he got makes no sense. As one example, he pointed to a part of the application that simply asks companies to name their owners and investors. The maximum score is one point. Moran's two reviewers gave him an average score of 0.165.

"It's kind of a pass-fail, right?" Moran said. "Either you get the points, or you turn in a blank sheet of paper. We have records of turning it in and we got zero points on that section." When Moran contacted the DPS, he learned, as the FAQ puts it, that scores "are not subject to review."

Moran isn't the only one complaining. When Texas Cannabis co-signed the letter, it was joined by nine other companies, none of which were accepted. The letter says the DPS gave businesses conflicting information and "made substantive changes to the application process itself" as the deadline loomed.

Mostly, though, the letter focuses on the change from 12 dispensaries to three. The Compassionate Use Act requires the DPS to "ensure reasonable statewide access" to medicine. The association argues the DPS never gave adequate explanation for its change and therefore violated the Administrative Procedure Act, which requires state agencies to conduct their duties in good faith.

"Basically, they're supposed to show their math," said Elizabeth Nichols, chairwoman of the Texas Cannabis Industry Association. (Nichols wasn't an applicant.)

Entrepreneurs like Moran haven't gotten a license and won't unless the maximum number of dispensaries goes up. But to make matters worse, Nichols said, they weren't rejected, either. "They're in perpetual administrative purgatory," she said. "Until the agency makes a decision one way or another, you cannot appeal that process."

A lawyer, Nichols also expressed reservations about the prescription wording. She said the federal definition of a "prescription" would likely take precedence over Texas's law. "Prescription is a federal term," she said. "That's the difficulty with that language."

Although the DPS doesn't have to officially license companies until September 1, the three conditional approvals make it pretty clear who'll be accepted. One of the companies was Compassionate Cultivation.

In some ways, Compassionate Cultivation makes for an unlikely marijuana business. Two of its partners, brothers Michael and John Rubin, run a personal-injury law firm in Austin. The CEO, Morris Denton, comes from a start-up background. "Before we decided to pursue this business, I didn't have any experience with cannabis," he said.

To Denton, the move from tech start-ups to medical marijuana was a relatively natural one. "I see a lot of similarities," he said. "The pace of change is similar to how things happen in tech industries." He isn't worried about the prescription language, nor does he think the application was unfair. "We all played under the same rules," he said when asked about some of the criticisms leveled by other applicants.

Denton estimates he can start serving patients about 90 to 120 days after being officially approved, based on the grow cycle of marijuana. When pressed on this - did he have an exact date for when patients could use medicine and was he surprised the DPS hadn't created one? - Denton seemed a little irritated.

"A plant can't grow any faster than a plant can grow," he said. "There's still ample time for any doctor to input into that patient registry."

"Here's what I'm happy to tell you," he added. "Based upon our target of getting a license no later than September 1, we expect we'll have medicine around either Christmas or New Year's."

***

Andrea Wimberley lives in a one-story brick house in Katy, in the kind of quiet subdivision where all the streets seem to loop back on each other. On a recent afternoon, she invited us to meet her family and get a better sense of what her medical regimen is like. Wimberley wore glasses, a black dress top and a big smile. Though she's only 5'2", her personality gives her a bigger presence.

Inside, a gray kitten named Spanky - born on 4/20 (shorthand for the time in the afternoon to begin smoking weed), Wimberley noted - pawed at the carpet.

Her husband, Robert, sat at the kitchen counter, working on his laptop. He got up and retrieved two small bottles of cannabis oil from the fridge. Made by a company called Honey B Healthy Living, the product came with labels. It described it as "naturally occurring CBD in hemp oil."

In the world of mail-order medical marijuana products, the word "hemp" has special significance. Although there's no real difference between hemp and marijuana - both are the cannabis plant - the federal government has decided any cannabis with less than 0.3 percent THC is "hemp." The initials "CBD" denote the same thing: a low-THC product that's ostensibly rich in cannabidiols, the other main active ingredients in cannabis. (The DEA is now trying to ban this nebulous category, too.)

The Internet is full of companies selling CBD products, many of them of dubious quality. But Andrea apparently found a good one. Honey B gives her information on potency and purity, she said. A bottle costs $50 and can last her a month or two. When she feels a seizure coming on, she squeezes a drop under her tongue and holds it there until the effects dissipate.

The Wimberleys' son, Taylor, recently turned seven. He came in off the school bus at one point, still buzzing from late-birthday cupcakes at school. He picked up one of his new toys, a novelty gun that puts out a red light. Ducking behind a door frame, he pointed it and smiled impishly.

"Taylor," Robert chided. The young boy scurried off into his room.

"Do you want to tell the man about the time you saved mommy's life?" Andrea asked.

Taylor sported a Pink Floyd T-shirt and a blond buzzcut. He stayed in his room for the most part, occasionally making appearances. As the afternoon wore on, his parents brought him back out.

"Do you want to tell the man about the time you saved mommy's life?" Andrea asked.

Taylor blushed and looked down. Not really, the answer seemed to be. Despite his goofy antics - in addition to the laser gun, the young boy had also attacked from behind with a foam sword - Taylor was shy. His small frame shifted around in a big kitchen chair as he tried to avoid eye contact.

Slowly, the story came out. As Taylor recalled it, he was sitting on the couch in the living room. Since the Wimberleys have an open floor plan, this is basically the same room as the kitchen. His mom was making a sandwich one day when she toppled over. A chair landed on her.

Taylor remembered the family iPad was in his parents' bedroom. Since the contact page for his dad included a photo, he didn't even have to read the name. He FaceTimed his dad, then pointed the iPad camera at his mom, so his dad could see what was going on.

"Were you scared?" Andrea asked.

"A tiny bit," Taylor said. He squirmed around again. "Because I was kind of nervous you were going to die."

It wasn't Andrea's first time hearing this, but she still looked shocked to hear it again. "No mother ever wants those words to come out of her child's mouth," she said. "Robert and Taylor get the brunt of this. I just wake up from a seizure and say, 'OK, what's for dinner?' But they have to see me like that."